«Mary Helen Wimberly Battered Woman Syndrome was developed in the mid-1970s to help combat the sex-bias present in the criminal law, particularly in ...»

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This use of expert testimony to explain reasonableness, though logically baffling, is the only realistic option for introduction of evidence of battering under the current evidentiary laws.67 Judges and juries still require an expert to give the battered woman’s claim of selfdefense a voice of authority, because her claim challenges long held social norms.68 It is assumed that jurors cannot possibly see the correctness of the woman-defendant’s claims of Id. at 802.

Mahoney, supra note 7, at 42.

GILLESPIE, supra note 1, at 160.

Raeder, Proving the Case, supra note 63, at 790, 802.

Schneider, Describing and Changing, supra note 2, at 202.

reasonableness without the help of an expert. Domestic violence is so far beyond the “ken of the average layman,” and so ingrained in our beliefs that it is a private, family matter, that an expert is required to fit this into commonly held views of reasonableness.

Of course, there are contradictions inherent in this argument. BWS testimony may have been developed to dispel common myths and stereotypes about battered women, but it has been accepted by the larger legal community because of its tendencies to reinforce social norms and patriarchal values.69 Courts are more likely to accept the expert’s testimony of BWS if the victim fits the model of a hapless victim. The testimony is used to answer questions entirely inappropriate for considering her self-defense claim, such as why she didn’t just leave. Further, the expert testimony perpetuates the belief that the victim-defendant needs help to convey her reasonableness to the jury, and this help must come from a neutral, detached “expert” who legitimates the woman’s story through social science. This purges the woman’s experience of all its female aspects, and replaces it with a sterilized description of a psychological “syndrome.” Thus, this fits in with long-held beliefs that women are helpless, irrational victims whose actions are not recognizable as reasonable are rational.

As previously discussed, testimony regarding BWS is inherently filled with implications that the victim-defendant is somehow psychologically impaired or incapacitated. She didn’t leave because of the “syndrome.” She overreacted and lashed out against her abuser because of the “syndrome.” This testimony ends up resurrecting excuse doctrine to excuse this poor woman of her unreasonable conduct, compelled by her personal, private syndrome. As a result, we don’t have to look too hard at the public, societal pressures that create an environment that tolerates See Schneider, Describing and Changing, supra note 2, at 199 (“[T]estimony is being presented, heard and sometimes misheard, that goes to the other extreme of depicting battered women as helpless victims and failing to describe the complexity and reasonableness of why battered women act. Courts are reflecting these perspectives in opinions on expert testimony on battered woman syndrome that resonate with familiar stereotypes of female incapacity.”).

domestic violence: it is the individual defendant’s personal problem. Her syndrome is what kept

her from doing what society sees as reasonable for women in domestic violence relationships:

she didn’t leave because of the syndrome. Her incapacity is the syndrome.

But we must remind ourselves that BWS is not a separate defense; it is merely a poorly named shorthand for an expert’s testimony about the effects of battering on women. BWS is meant to provide context to a woman’s actions, and provide evidence that this context is common among women in violent intimate relationships.70 We must accept that BWS is generally accepted because it reinforces patriarchal norms, but at the same time seek to change those norms from within the system. In this way, expert testimony may resurrect the seemingly forgotten theory of necessity that underlies justification defenses.

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A justification defense demonstrates a normative judgment that the action in question is socially desirable. Thus, it is a publicly acknowledged just action. Defenses of necessity, such as self-defense, are based on this notion that a person should not be punished for being placed in an impossible situation. The situation compels the action—not the particular person’s

characteristics. As Professor Schneider explained:

Excuse suggests that the act is personal to the defendant, a private act, in contrast with a more public and common sense of rightness which justification reflects.

Excuse suggests a sense of the subject, while justification implies a more objective statement. Redrawing the boundaries of justification and excuse means recasting the boundaries of the private/public and subjective/objective oppositions, making women’s experiences generally, and battered women’s experiences and perceptions specifically, more public and legitimate, and also more objective.71 Self-defense law in particular recognizes the fundamental right to defend one’s self against harm from others, and the reasonableness of this action.

Schneider, Equal Rights to Trial for Women, supra note 25, at 645.

Schneider, Describing and Changing, supra note 2, at 216.

In cases of battered women who kill, what creates the necessity of her action? How is it ever her only reasonable option to kill her batterer? Instead of focusing on the victim-defendant’s personal syndrome to explain her actions, expert testimony should instead focus on exposing the social norms and failings of local governments that have created this situation of necessity. The true syndrome is the social mores that view men as entitled to act violently toward their partners, and see domestic violence as a private, family matter.

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Experts should use their testimony to redefine domestic violence as a public harm, caused by a larger, public wrong that created the victim-defendant’s necessary act of self-defense. This will show that the societal ills that are tolerant of domestic violence should not be borne by the individual alone, one defendant at a time, but should be seen as a public problem. As Julie Blackman explains, “For too long, our shared reluctance to acknowledge the violence that existed in the family has caused societal abuse to be heaped upon the abuse perpetrated by individuals.”72 Expert testimony currently serves only a limited function. As Professor Mahoney writes, “In a particular legal action, an individual battered woman's experience is at least partly explained, but the cultural perceptions that limit broader social understanding may remain untouched, and go on to shape legal action again.”73 Experts should do more: it should introduce empirical, historical, and cultural evidence to demonstrate the widespread, social, and public nature of the harms caused by domestic violence.

Julie Blackman, Potential Uses for Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill, 9 WOMEN’S RIGHTS LAW REPORTER 227, 238 (1986), in DEFENDING BATTERED WOMEN IN CRIMINAL CASES, supra note 2; see also Julie Blackman, Emerging Images of Severely Battered Women and the Criminal Justice System, 8 BEHAVIORAL SCIENCES AND THE LAW 121, 128 (1990), in DEFENDING BATTERED WOMEN IN CRIMINAL CASES, supra note 2 (“The criminal justice system, like society more generally, has been reluctant to formally acknowledge the psychological consequences of severe battering and to shape them into a legal defense. Thus, each case is handled anew, with elaborate constructions of the relationship between battering and justification rediscovered in each case, before each grand jury and at each trial.”).

Mahoney, supra note 7, at 42.

This evidence should be offered to show that the syndrome is in fact shared by the greater American community, and not just the battered woman: it is the tendency of society to close a blind eye to the problems of domestic violence, or to look down upon women who do openly admit they are victims. Further, inadequate police protection and judicial support for victims of domestic violence perpetuates the norms that domestic violence is a personal, rather than a public, problem.

Several scholars have called for an increase in empirical testimony by expert witnesses in BWS cases. In two separate articles, Professor Raeder, writing in response to the issues brought out in the O.J. Simpson trial of the early 1990s, advocates the use of “statistics and general background information of battering,” particularly in cases prosecuting the batterer.74 Professor Raeder’s recommendation, however, was limited to explaining the need to use empirical evidence to prevent the uninformed juror from reaching erroneous conclusions because “popular conceptions regarding domestic violence are so often at odds with the truth.”75 Thus, this evidence is merely a way to explain the individual defendant’s situation. While this does so without pathologizing the woman, its ultimate goal is still only to describe one woman’s experience.

Professor David L. Faigman has similarly encouraged the use of empirical evidence in trials against battered women who have killed their abusers. In a note he wrote while still a law student, Professor Faigman argued that courts should allow “valid empirical evidence,” chiefly, “economic and social factors,” to explain “a woman’s failure to leave the battering Myrna S. Raeder, The Better Way: The Role of Batterers’ Profiles and Expert ‘Social Framework’ Background in Cases Implicating Domestic Violence, 68 U. COLO. L. REV. 147, 179 (1997); see also Raeder, Proving the Case, supra note 63.

Raeder, The Better Way, supra note 74, at 182.

relationship.”76 This approach, while recognizing the benefit of the empirical evidence, still limits its potential effectiveness: it is used to explain why this woman did not leave, instead of saying why society expected her to stay.77

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Empirical, historical, and sociological evidence should be used by experts to show that the necessity of a battered woman’s actions in self-defense is in large part created by societal pressures that demand that women stay in the home, and submit to the domination of men. For instance, an expert could demonstrate how the assumptions of the law and subsequently of law enforcement officials reflect the social norms that compel women to silently and privately cope with domestic abuse. As Caroline Forell and Donna Matthews wrote, “[T]he law is often ineffectual. For example, in a [1994] U.S. Department of Justice study, Marianne Zawitz estimated that nearly 90 percent of women killed by intimates had previously called the police, and that half of these had called five or more times.”78 Professor Raeder similarly found, “The statistics produced from myriad sources are disconcerting, even with some discounting for methodological objections. Each year nearly 1500 women are killed by their batterers.

Approximately ninety percent of women killed by husbands or boyfriends were stalked and had previously called the police.”79 David L. Faigman, Note, The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Defense, 72 VA. L. REV. 619, 644-45 (1986).

Other scholars offer similar views about the use of “contextual” social evidence. See, e.g., Maguigan, supra note 33, at 383 (defining a “fair trial” for a battered woman as one that allows her to put forth evidence “of the social context of her action”); Schneider, Describing and Changing, supra note 2, at 202-03 (“Battered woman syndrome can also include a description of the psychological impact of the common social and economic problems which battered women face.”). Again, these scholars limit their discussion of the usefulness of this evidence to dispelling myths about the particular victim-defendant on trial.

FORELL & MATTHEWS, supra note 8, at 206.

Raeder, Proving the Case, supra note 63, at 792. For a study on the policies in place at local police departments for domestic violence calls, funded by the U.S. Department of Justice see MEG TOWNSEND, DANA HUNT, SARAH Women who have been victimized by their intimate partners may have tried, and failed, to get help from the police. According to Gillespie, “Many women who have ultimately killed

violent mates tell of their inability to get police protection.”80 She continues:

If she is like the overwhelming majority of battered women, she also knows, firsthand, that she cannot rely on the police, the courts, neighbors, relatives, or anyone else for protection against her violent mate. Every attempt to get help is likely only to reinforce her perception that she has no alternative but to protect herself.81 This “don’t ask, don’t tell” mentality demonstrates a societal preference for idealized notions of the family over protection of the woman. This preference prevents women from seeking protection from the very public agencies that were created to help victims of abuse. As Julie Blackman explains, “[P]rotective agencies and interventionist policies more generally must ‘swim upstream’ against the flow of attitudes that give biological parents and marital bonds far more credit than they deserve.”82 These are the social ills that so severely limit a battered woman’s choices. This is what expert testimony should identify and seek to remedy. It is not the woman’s pathology that kept her from leaving a violent relationship, it is society’s illness that made it acceptable for the man to batter in the first place, and also pressured the woman to stay in the relationship. The battered woman’s actions were reasonable, because her community gave her no other choice.

This is where the normative function of criminal law comes into play. As Professor Schneider described, “Social mores determine when self-defense is reasonable.”83 But the criminal law also shapes these social mores. Professor Robison observed, “[C]riminal law

available at http://www.ncjrs.gov/pdffiles1/nij/grants/215915.pdf. The U.S. Justice Department’s Bureau of Justice Statistics produced a report detailing intimate homicide trends in the United States, and this is available at http://www.ojp.usdoj.gov/bjs/homicide/intimates.htm.

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